United States District Court, E.D. California
ORDER DENYING MOTION TO VACATE, CORRECT, OR SET ASIDE
SENTENCE (DOC., 60)
here pleaded guilty on December 1, 2008 to one count of
violating 18 U.S.C. § 2252(a)(2), receipt or
distribution of material involving the sexual exploitation of
a minor. (Doc. No. 16.) He was initially sentenced to 210
months in the custody of the Bureau of Prisons, to be
followed by 120 month term of supervised release. (Doc. Nos.
27, 28.) However, on appeal this sentence was vacated with
the Ninth Circuit concluding there was no evidence defendant
distributed pornographic material in order to obtain a
benefit. (Doc. No. 38.) On September 7, 2010, defendant was
resentenced to a term of 200 months in the custody of the
Bureau of Prisons with a 120 month term of supervised release
to follow. (Doc. No. 49.) Defendant appealed from this
sentence as well, and the judgment and sentence was affirmed
on October 27, 2011. (Doc. Nos. 50, 57.)
until October 11, 2016, did defendant bring this pro
se motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. (Doc. No. 60.) In that
motion, defendant argues he should have been resentenced by a
different judge, following the vacating of his original
sentence on appeal. (Id. at 4.) He asserts that the
previously assigned District Judge who re-sentenced him
“treated the 9th Circuit's remand with mirth,
” that he was provided ineffective assistance of
counsel when the matter was not heard by a different judge,
and that he received no benefit from having a five-level
sentencing enhancement overturned on appeal. (Id.)
In seeking to explain why his pending motion was not filed
until nearly five years after his judgment and sentence was
affirmed on appeal, he states:
My second appeal was a shock when my unjust resentence soaked
in, I went into state of suffering from the injustice, my
medical problems within the BOP have been nightmarish to me,
managing 4 civil rights lawsuits filed in Fresno County Jail,
and the loss of hope from all of that. Ineffective assistance
knows no bounds.
(Doc. No. 60 at 10.)
of the Rules Governing Section 2254 and 2255 Cases requires a
judge assigned to such a case to promptly examine the case
upon filing. “If it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss the
petition.” Rules Governing Section 2254 and 2255 Cases,
year statute of limitations applies to all motions filed
under 28 U.S.C. § 2255, which runs from the date on
which the judgment becomes final. 28 U.S.C. § 2255(f).
If a sentence is appealed and remanded, “the judgment
does not become final, and the statute of limitations [under
§ 2255] does not begin to run, until the district court
has entered an amended judgment and the time for appealing
that judgment has passed.” United States v.
Gilbert, 807 F.3d 1197, 1201 (9th Cir. 2015) (quoting
United States v. Colvin, 204 F.3d 1221, 1225 (9th
Cir. 2000)). If the defendant appeals the amended judgment to
the intermediate appeals court but does not seek a writ of
certiorari from the Supreme Court, “the one-year
limitations period . . . begins to run when the time for
filing the petition [for a writ of certiorari]
expires.” United States v. Garcia, 210 F.3d
1058, 1060 (9th Cir. 2000); see also United States v.
Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010)
(“[F]inality occurs when the Supreme Court
‘affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when the time
for filing a certiorari petition expires.'”)
(quoting Clay v. United States, 537 U.S. 522, 527
(2003)); see also Rules of the Supreme Court, Rule
13 (petition for writ of certiorari must be filed within 90
days of judgment).
tolling principles apply to petitions under 28 U.S.C. §
2255 in a manner similar to those filed by state prisoners
under 28 U.S.C. § 2254. United States v.
Battles, 362 F.3d 1195, 1196-97 (9th Cir. 2004)
(“The two sections have the same operative language and
the same purpose. We fail to see any reason to distinguish
between them in this respect.”). “Generally, a
litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005); see also
Holland v. Florida, 530 U.S. 631, 649 (2010); Doe v.
Busby, 661 F.3d 1001, 1011 (9th Cir.2011); Lakey v.
Hickman, 633 F.3d 782, 784 (9th Cir.), cert.
denied --- U.S. __, 131 S.Ct. 3039 (2011); Porter v.
Ollison, 620 F.3d 952, 959 (9th Cir. 2010); Harris
v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008.0 That
said, “equitable tolling is ‘unavailable in most
cases.'” Miranda v. Castro, 292 F.3d 1063,
1066 (9th Cir. 2002) (quoting Miles v. Prunty, 187
F.3d 1104, 1107 (9th Cir. 1999)); see also Holland,
560 U.S. at 652 (“[T]he circumstances of a case must be
‘extraordinary' before equitable tolling can be
applied [.]”) The petitioner seeking equitable tolling
“bears the burden of showing that this extraordinary
exclusion should apply to him.” Miranda, 292
F.3d at 1065. Equitable tolling is typically a “highly
fact-dependent” inquiry. See Whalem/Hunt v.
Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (dismissal
without factual development is permissible only if district
court can conclude there were “no circumstances
consistent with petitioner's petition and declaration
under which he would be entitled . . . to equitable
tolling”); see also Laws, 351 F.3d at 924
(same). But see Orthel v. Yates, 795 F.3d 935,
938-41 (9th Cir. 2015) (concluding no evidentiary hearing was
required where district court had access to records showing
petitioner was not incompetent); Roberts v.
Marshall, 627 F.3d 768, 772-73 (9th Cir. 2010) (same).
incompetency may constitute “an extraordinary
circumstance beyond the prisoner's control”
sufficient to justify equitable tolling. Calderon v.
United States District Court (Kelly), 163 F.3d 530, 541
(9th Cir. 1998) overruled on other grounds by Woodford v.
Garceau, 538 U.S. 202 (2003); see also Laws v.
Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (concluding
equitable tolling applies in non-death penalty cases). In
order to be entitled to equitable tolling based upon a mental
impairment, however, the following standard must be met:
(1) First, a petitioner must show his mental impairment was
an “extraordinary circumstance” beyond his
control by demonstrating the impairment was so severe that
(a) petitioner was unable rationally or factually to
personally understand the need to timely file, or
(b) petitioner's mental state rendered him unable
personally to prepare a habeas petition and effectuate its
(2) Second, the petitioner must show diligence in pursuing
the claims to the extent he could understand them, but that
the mental impairment made it impossible to meet the filing
deadline under the totality of the circumstances, including
reasonably available access to assistance.
Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir.
2010) (internal citations and footnotes omitted); see
also Orthel, 795 F.3d at 938-39; Forbess v.
Franke, 749 F.3d 837, 840 (9th Cir. 2014).
as noted above, following the affirmance of his judgment and
sentence defendant was denied a rehearing by the Ninth
Circuit Court of Appeals on November 22, 2011, and the
mandate issued on November 30, 2011. (Doc. Nos. 57, 58.) The
time for defendant's filing of a petition for a writ of
certiorari thus expired on February 28, 2012, and his time to
file a motion under 28 U.S.C. § 2255 expired one year
later, on February 28, 2013. Instead, the pending § 2255
motion was not filed ...